Verizon and the NSA – a response to five non-arguments justifying surveillance

Today my tweeting was heavily focused on the revelation that Verizon gave up a significant amount of information to the NSA. Among the many interesting pieces I read was an attempt by Slate’s Will Saletan to justify the surveillance. In a nutshell, Saletan argues:

  1. It isn’t wiretapping.
  2. It’s judicially supervised.
  3. It’s congressionally supervised.
  4. It expires quickly unless it’s reauthorized.
  5. Wiretaps would require further court orders.

See his article for further details. But in brief, his arguments seem to rest on the bases that the surveillance could be worse (true but not a justification), and that there are lots of nifty procedures to provide oversight (doubtful that they work). Below are the responses that I posted on Slate to Mr. Saletan’s arguments (slightly edited), providing my own translations for what I think the arguments really amount to:

  1. “It isn’t wiretapping.” Translated: it could be worse, so suck it up. Not a real strong starting point.
  2. “It’s judicially supervised.” Translated: the FISA court “supervises” the surveillance, which means that it probably usually rubber-stamps what the executive branch wants. But since it’s a secret court, we have no idea what’s going on.
  3. “It’s congressionally supervised.” Translation: Congress also “supervises” the surveillance, which means it also likely rubber-stamps what the executive branch wants.
  4. “It expires quickly unless it’s reauthorized.” Translation: the surveillance is likely reauthorized continually, making the authorization process a joke. And since we don’t know what’s going on, we’re not in on the joke. We are the joke.
  5. “Wiretaps would require further court orders.” Translation: it’s “only” metadata, which ignores the fact that metadata—when aggregated with other user metadata and external sources of data—is extremely revealing of private information. The argument that “[w]iretaps would require further court orders” also goes full-circle back to point #1 that it could be worse, which again is not real persuasive.

Saying that something could be worse is hardly an argument. We don’t justify burglary by saying that arson is worse. And “oversight” is meaningless when it is a rubber-stamp that is unseen by the public. Indeed, meaningless procedures provide nothing more a veil of lawfulness to otherwise outrageous conduct. As Congressperson John Dingell once famously said about procedure, “I’ll let you write the substance … you let me write the procedure, and I’ll screw you every time.”

Cross-posted to Infoglut Tumblr.

Julian Assange: “The Banality of ‘Don’t Be Evil’”

As I sit here working on a forthcoming article—Super-Intermediaries, Code, Human Rights—about powerful internet intermediaries and human rights, I was intrigued to come across Julian Assange’s op-ed in Saturday’s New York Times entitled The Banality of ‘Don’t Be Evil’.

Assange, the reclusive founder of WikiLeaks, has harsh words for Eric Schmidt and Jared Cohen, authors of the new book The New Digital Age. Schmidt, of course, is executive chairperson of Google, and Cohen is an author, a former advisor to Secretaries of State Rice and Clinton, and currently Director of Google Ideas.

Assange, pointing to this writing partnership as further evidence of the increased intertwining of governments and powerful internet companies, states in his characteristic polemic:

“THE New Digital Age” is a startlingly clear and provocative blueprint for technocratic imperialism, from two of its leading witch doctors, Eric Schmidt and Jared Cohen, who construct a new idiom for United States global power in the 21st century. This idiom reflects the ever closer union between the State Department and Silicon Valley, as personified by Mr. Schmidt, the executive chairman of Google, and Mr. Cohen, a former adviser to Condoleezza Rice and Hillary Clinton who is now director of Google Ideas.

Assange continues, attacking Google’s view of its own role in society:

“The New Digital Age” is, beyond anything else, an attempt by Google to position itself as America’s geopolitical visionary — the one company that can answer the question “Where should America go?” It is not surprising that a respectable cast of the world’s most famous warmongers has been trotted out to give its stamp of approval to this enticement to Western soft power. The acknowledgments give pride of place to Henry Kissinger, who along with Tony Blair and the former C.I.A. director Michael Hayden provided advance praise for the book.

Although Assange’s rhetoric is perhaps overheated, the concerns he raises are without a doubt real. Similar concerns are echoed by authors such as Rebecca MacKinnon in her excellent and accessible book Consent of the Networked. I agree with MacKinnon that one of the most important issues we face today is the emergence of extremely powerful corporate intermediaries and their ever-increasing power. As MacKinnon notes in her book (page xxiii), in the first half of the 20th century, corporations were confronted with employee safety and health concerns, and in the second, with the environmental movement. But today, “most Internet and telecommunications companies have failed to accept responsibility—beyond cyberutopian platitudes—for the rights of their customers and users.”

Similarly, my forthcoming article Super-Intermediaries, Code, Human Rights addresses the nature of “Super-Intermediaries” such as Google, Facebook, and Twitter, and assesses the role that international human rights law might provide in guiding powerful non-State internet actors. My core thesis is that powerful internet intermediaries have exceptional power, and as such, bear especial responsibilities to the public. (Or as Peter Parker’s uncle famously said, “With great power there must also come—great responsibility!”)

But responsibility to do what? Do good? Not do evil? These ideas of power, responsibility, and evil bring me back full-circle to Assange and his op-ed. His article’s title, The Banality of ‘Don’t Be Evil’, mocks Google’s unofficial motto, “Don’t Be Evil.” But ironically, as I point out in my draft article (not yet online), Google honcho Eric Schmidt, when asked what “Don’t Be Evil” meant, once replied: “Evil . . . is what [Google co-founder Sergey Brin] says is evil.”

Wow! This is a circular and empty definition: evil is what Google says it is. Such a definition is at the least extremely unsatisfying and at the worst baldly Orwellian.

But I honestly think that Google does not view itself as Orwellian. And in fairness, I know that many people in the company sincerely want to do good for the world. But accountability, transparency, and multi-stakeholder participation are crucial. Organizations like the Global Network Initiative (an organization that looks to some, but not all human-rights principles and includes some, but not all of today’s Super-Intermediaries) provide a good start. Also important are transparency reports such as those now provided by Google, Twitter, and Microsoft. So there are some promising developments. But more needs to be done to ensure that powerful Super-Intermediaries do good and are held accountable.

More thoughts to follow in the weeks ahead as I wrap up the article, which is forthcoming in the Intercultural Human Rights Law Review. I suspect that this article will be only the first of a number of papers on such matters.

Cross-posted to Infoglut Tumblr.

Sending @injunctions via Twitter?

Reuters reports that the High Court of Britain has ordered an injunction to be sent via Twitter:

Britain’s High Court ordered its first injunction via Twitter on Thursday, saying the social website and micro-blogging service was the best way to reach an anonymous Tweeter who had been impersonating someone.

The order will appear for the recipient the next time he or she logs into their Twitter account.  According to Andrew Walker at Griffin Law, “Whoever they are, they will be told to stop posting, to remove previous posts and to identify themselves to the High Court via a web link form.”

UPDATE 10/4: Last night I read a great article on the dispute in Time Magazine about the dispute, which involves “Conservative blogger Donal Blaney and a Twitter imposter tweeting as @blaneysblarney,” who has allegedly been impersonating as Blaney.  The article says:

in response to a petition filed by Blaney, the English High Court sent this “direct message” to @blaneysblarney via Twitter: “You are hereby ordered by the High Court of Justice to read and comply with the following order.” This was accompanied by a link to a web page containing the command to desist from the misleading tweeting. By clicking the link, the miscreant risks revealing his or her personal IP address, but Blaney realizes his shadowy opponent might not fall into this cunning trap.

Hat tip to Jim Bolin at Charlotte Law.

Today in 1840: Morse Code patent issued reports that today is the anniversary of the 1840 patent for Morse Code:

Morse code has now been in use for more than 160 years. It still has practical applications in the modern world because almost anything can be used, from telegraph key to flashlight to pencil to fingertip, to tap out or flash a message. Severely disabled people even use Morse to communicate, sending out the code by eye movement or puffing and blowing.

For an excellent read on the history of the telegraph and its parallels to the internet, see The Victorian Internet by Tom Standage.

Here’s Morse’s patent, issued 168 years ago today:

Read this document on Scribd: Morse

Courtrooms, Razrs, and ringtones


New Year’s Resolution: catching up on my blogging. Along those lines, my St. Thomas colleague Fred Light brought to my attention last term to an interesting administrative order from the United States District Court for the Southern District of Florida.

The order, entitled In re: Cellular Phone and Electronic Equipment Usage in the Courthouse, addresses legitimate concerns over the presence and use of cell phones — and particularly camera phones — in the courtroom. It designates persons who can bring cell or camera phones to court but warns that “[n]o cellular phones of any kind may be used in a courtroom or jury deliberations room and no photographs of any kind may be taken in any federal courthouse facility.” Penalties for violations include 30 days in jail and/or a fine of $5000 and/or punishment for contempt of court.

Woe to the first person in a Miami courtroom whose Motorola Razr blares out Iron Butterfly’s In-A-Gadda-Da-Vida as a ringtone.

Thanks to dreamingyakker at Flickr, who licensed the photo through this Creative Commons license.